Lord Chancellor’s Guidance on Exceptional Case Funding

Solicitor Advocate

In http://www.familylaw.co.uk/news_and_comment/gudanaviciene-legal-aid-guidance-not-compatible-with-a-right-to-a-fair-trial)
Family Law News considered R (ota Gudanaviciene & Ors) v The Director of Legal Aid
Casework & Ors
[2014] EWCA Civ 1622. The Court of Appeal found
the Lord Chancellor’s guidance for grant of exceptional case legal aid funding (ECF) was partially not
compatible with European Convention 1950 on human rights. The
Guidance ‘impermissibly sends a clear
signal to caseworkers and the Director that the refusal of legal aid will
amount to a breach only in rare and extreme cases’ (para [181]). The threshold for
grant was set too high.

On 9 June 2015 the Lord Chancellor published Exceptional Funding Guidance (Non-Inquests)[1]
(the Guidance) revised in the light of Gudanaviciene.
This note considers those revisions, and whether – still – the ECF scheme is
not Conventions compliant.

Legal Aid Sentencing and Punishment of Offenders Act 2012
(LASPO) s 10(3) explains when ECF
should be granted. It is ‘exceptional’, not because of some rarity of grant,
but because of the factors – namely Convention compliance – which makes s 10(3)
applicable. ‘Exceptionality is not a test’ (para [29]), said the court, but merely
a descriptor. Section 10(3)(a) ‘speaks of the situation where a failure to make civil legal
services available would be a breach, not where there would be a real risk of a
breach…’. (at [31]). If the LAA case worker cannot decide if there would be a breach of
Convention or EU rights s/he goes on to consider the application under s
10(3)(b): is there ‘any risk that failure to make a determination would be a
breach. These words mean exactly what they say’ (at [32])?

‘Obvious unfairness’

In Gudanaviciene
the court asked whether lack of representation created ‘obvious unfairness’
([42]). In a passage, which should surely have found its way into the new Guidance, the ‘obvious unfairness’
case-law (at [46]) was summarised by the court:

The
Convention guarantees rights of access to the courts that are practical and
effective, not theoretical and illusory (Airey v Ireland (1979) 2 EHHR 533, at para 24; Steel and Morris (2005) 41 EHRR 22, at para 59).

Is
the applicant's appearance before the court without a lawyer likely to be effective:
ie whether s/he could satisfactorily present the case (Airey (above) at para 24; McVicar v
UK (2002) 35 EHRR 22, at para 48;
and Steel and Morris
(above) at para 59)?

It
is relevant whether the proceedings taken as a whole were fair (McVicar (above) at para 50, P,C and S v
UK (2002) at para 91).

The
importance of the appearance of fairness is also relevant: simply because an applicant
can struggle through ‘in the teeth of all the difficulties’ does not
necessarily mean that the procedure was fair (P,C and S (above) at para 91).

Equality
of arms must be guaranteed so that each side is afforded a reasonable
opportunity to present his/her case under conditions that do not place them at
a substantial disadvantage vis-à-vis their opponent (Steel and Morris (2005) at para 62).

Case presentation by
a party: ‘effectively and without obvious unfairness’

The ‘critical question’ remains: is ‘an unrepresented litigant able to present his case
effectively and without obvious unfairness’ (para [56])? The Guidance has been only slightly rewritten
to reflect the findings in Gudanaviciene.
For example, the old guidance (para 12) stated that Art 6(1) guaranteed the
right to a fair hearing, but that grant of ECF should only be made ‘in certain
very limited circumstances’. The same passage in the new Guidance reads (now para 13):

Article 6(1) guarantees the right to a fair hearing
and the right of access to the court for the purposes of the determination of a
person’s civil rights and obligations. In certain circumstances, legal aid may
be required in order to guarantee the effective right of access to a court in
civil proceedings, or to prevent obvious unfairness. The Court of Appeal has
confirmed that Art 6(1) does not require that funding be granted in “most
or even many cases” [Gudanaviciene at para [56] (see below)] ... Whether the
Convention requires funding in any given case depends on a holistic assessment
in each case.

Further para 18 (original guidance, criticised by Gudanaviciene), has been redrafted as a
rubric between paras 19 and 20 as follows:

The
overarching question to consider is whether the withholding of legal aid would
mean that the applicant is unable to present his case effectively and without
obvious unfairness. (Emphasis in original)

The position on grant of ECF to avoid ‘obvious unfairness’
is intended to be reflected in the new para 20 which states:

The following factors should be taken into account. No
one of these factors is necessarily determinative and each case needs to be
assessed on its particular facts and in the light of representations made by
applicants. However, the factors must be carefully weighed – for example, the
greater the complexity of the procedural rules and/or the substantive legal
issues, the more important what is at stake and the less able the applicant may
be to cope with the stress, demands and complexity of the proceedings, the more
likely it is that Art 6(1) will require the provision of legal services [Gudanaviciene para [56] is cited here].

What the Court of Appeal actually said is:

'[56] … the critical question is whether an
unrepresented litigant is able to present his case effectively and without
obvious unfairness. The answer to this question requires a consideration of all
the circumstances of the case, including the factors which are identified at
paras 19 to 25 of the Guidance [now paras 20 to 26]. These factors must be
carefully weighed. Thus the greater the complexity of the procedural rules
and/or the substantive legal issues, the more important what is at stake and
the less able the applicant may be to cope with the stress, demands and
complexity of the proceedings, the more likely it is that article 6(1) will
require the provision of legal services (subject always to any reasonable
merits and means test). The cases demonstrate that article 6(1) does not
require civil legal aid in most or even many cases.'

In Muscat
v Malta (2012) (App No 24197/10) the European Court made a
similar point:

'[46] … In discharging
its obligation to provide parties… with legal aid, when it is provided by
domestic law, the State must display
diligence so as to secure to those persons the genuine and effective enjoyment
of the rights guaranteed under Article 6.' (Emphasis added)

The reference to ‘all the circumstances’ and other references in Gudanaviciene to European Court
jurisprudence (see eg para [46] summarised above) is omitted from the Guidance in paras 19/20, and elsewhere.
Does the Guidance comply with what
the Court of Appeal said made it non-compliant with European Convention 1950?
Can it be said that the approach of the new Guidance
consistent with the duties of the Lord Chancellor under the European Convention
1950 as perceived by the recent Court of Appeal decisions in Gudanaviciene and the earlier JG decision?
[1]
The full title necessary, to distinguish the two forms of civil legal aid: for
inquests and for other civil proceedings.

The duties of the Lord Chancellor to provide legal aid
‘civil legal services’ are set out in LASPO s 1(1) and (2):

The Lord Chancellor must secure that legal aid is
made available in accordance with this Part.

In this Part 'legal aid' means—

(a) civil legal services required to be made available
under section 9 or 10 or paragraph 3 of Schedule 3 (civil legal aid),…

Such general provision as subsists for civil legal aid is
provided for at s 9 (and in extensive schedules to LASPO), and at s 10 for
special legal aid (ie ECF determinations) where European Convention 1950 may be
breached, or thought to be at risk of being breached.

In Gudanaviciene
the Court of Appeal drew attention to the need for LAA case-workers fully to consider
European Court jurisprudence (and the court provided a summary of this at paras [35]
to [40]). The duties of a state (ie the Lord
Chancellor) to which the Court of Appeal drew attention in Gudanaviciene and JG, in
the context of Art 6(1), are:

A consideration of ‘whether an unrepresented
litigant is able to present his case effectively and without obvious
unfairness’ (Gudanaviciene at [56]).

There is no obligation under the
Convention to make legal aid available for all disputes in civil proceedings (Steel and Morris v UK(2005) 41 EHRR 22 at [62]; JG
at [97]). That said the Convention was ‘intended to guarantee not rights that
are theoretical or illusory but rights that are practical and effective’ (Airey v Ireland (1979) 2 EHHR 533 at [24]; Muscat
v Malta (2012) Application no. 24197/10 at [45]
quoted in JG).

‘The State must display diligence so as to secure to
those persons the genuine and effective enjoyment of the rights guaranteed
under Art 6’ (European Court in Muscat
at [46])).

Consideration of these principles requires a
consideration of all the circumstances of the case, of the underlying law in
the case and of the relevant European Court jurisprudence (Gudanaviciene especially at [56]).

Duties in 2015 Guidance

The Guidance
translates the Gudanaviciene
requirements (with the emboldened rubric above), to give two examples, as
follows:

'[6] In considering whether it is necessary to make civil legal services available, caseworkers
should ask themselves whether a failure to do so would be a breach of
Convention rights or enforceable EU rights by reference to the principles
identified in this Guidance and in any relevant case law (emphasis supplied in
the text) [citation of Gudanaviciene
at [31] here].'

'[13] … In certain circumstances, legal aid may be
required in order to guarantee the effective right of access to a court in
civil proceedings, or to prevent obvious unfairness. The Court of Appeal has
confirmed that Article 6(1) does not require that funding be granted in “most
or even many cases” [citation of Gudanaviciene
at [56]], but caseworkers should not approach the applications for ECF with any
preconception about the proportion of applications that are likely to succeed.
Whether the Convention requires funding in any given case depends on a holistic
assessment in each case.'

The threshold for consideration of grant (assuming an
applicant is financially eligible) is
‘that it is necessary to make [civil legal aid] available to’ the applicant,
because failure to do so would be a breach of his/her Convention rights; or the
case worker fears there might be such a breach (LASPO s 10(3)). Do the above
paragraphs of the Guidance translate
the s 10(3) necessity into a ‘diligent’ approach to grant of legal aid (see Steel & Morris and Muscat (above))? Is the new Guidance by which case-workers assess ECF
applications compliant with HRA 1998?

Human Rights Act 1998

Human Rights Act 1998 s 6(1) provides that: ‘It is unlawful
for a public authority to act in a way which is incompatible with a Convention
right.’

European Convention 1950 Art 6(1), so far as relevant,
provides:

Right to a
fair trial
(1) In the determination of his civil rights and
obligations…, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law.

In Airey v Ireland
(1979) 2 EHHR 533 the European Court recognised that where the nature of the
proceedings demanded it, a denial of legal aid might, in itself, be a denial of
a fair trial contrary to Art 6(1) (Airey
and the following case law is considered in Gudanaviciene
at [35] to [40]). The complexity of law or procedure may not guarantee that a
fair trial will be denied, but it is a factor legal aid authorities must have
in mind, as explained by the European Court in Steel and Morris v UK(2005) 41 EHRR 22:

'[61] The question
whether the provision of legal aid is necessary for a fair hearing must be
determined on the basis of the particular facts and circumstances of each case
and will depend, inter alia, upon the importance of what is at stake for the
applicant in the proceedings, the complexity of the relevant law and procedure
and the applicant's capacity to represent him or herself effectively.'

However once a state
has determined that a person’s means justify legal aid, that their civil rights
are in issue and that their right to a trial risks real and obvious unfairness
by a lack of legal advice and representation then, said the European Court in Muscat v Malta (above): ‘The
State must display diligence so as to secure to those persons the genuine and
effective enjoyment of the rights guaranteed under Art 6’ (at [46])).

Is there a point at
which the s 10(3) necessity threshold is achieved; and that from that threshold
point – just as a doctor confronted by an injured patient must seek to help him
or her – the LAA must switch to a supportive role? From then they must comply
with their duty to provide help for the litigant in question within statutory
limits. If this is so, how is this supportive role to be defined and to be
translated into practice? And finally does the Guidance as now drafted achieve this?

Services to be provided: the s 10(3) necessity
threshold

A starting point for
grant of funding is at para 36 of the Guidance
under the heading ‘Extent of services to be provided’:

'Where caseworkers conclude that legal aid is
required to be provided under section 10, this should be limited to the minimum
services required to meet the obligation under ECHR or EU law. For example, it
could be through providing assistance in the form of specific levels of
service, or through limitations placed on funding certificates.'

Under the capability
of the applicant to present their case effectively paras 23 and 24 state:

'Caseworkers should consider whether the applicant
would be incapable of presenting their case without the assistance of a lawyer.
When considering this factor, caseworkers will need to bear in mind their
assessment of case complexity, as this may affect the weight that needs to be
given to some of the matters listed below.'

These two paragraphs (amongst a number) do not paint the LAA
as a supportive department over-imbued with ‘diligence…to secure’ that services
are provided. Para 36 does not present them in a forgiving light (bad losers,
perhaps?) once they have accepted that the necessity threshold has been
achieved.

‘Without obvious
unfairness’: assessment factors

Whether the applicant ‘would
be incapable of presenting their case without’ legal assistance presents only a
partial view of Gudanaviciene and is
unlikely to represent the law. And yet it is surely the central feature of a s
10(3) assessment? It calls for a pro-active approach by case-workers (see Kerr below), not the negative assessment
which the Guidance demands. This
would include a purposive to the following assessment factors:

Given the facts of the case and the issues at
large what is the law which may reasonably be said to be involved in dealing
with the case?

What is the procedure by which the case is to
be dealt with and are there any particular procedural issues which may arise
which an unrepresented litigant might be expected not to anticipate or to deal
with?

Can an unrepresented litigant be expected,
without obvious unfairness, to deal with these features of law and procedure,
and thereby secure a fair trial?

If not what level of assistance should the
LAA provide to applicants (see Kerr
below)?

If the LAA can show they have assessed and fully considered
each of these assessment factors in an individual case and, thus, that the s
10(3) threshold has been reached, then the LAA’s role changes says the European
Court. The Agency ‘must display diligence so as to secure to those
persons the genuine and effective enjoyment of the rights guaranteed under Art
6’ (Muscat (above) at para [46]).

Level of service to
be expected by ECF applicants

Legal aid is intended to be a co-operative venture between
applicant, lawyer and the LAA – the ‘stakeholders’ as they used to be called.
The scheme under Legal Aid Act 1949 was part of the Beveridgeian welfare state
introduced by the 1945 Labour government. Legal aid is part of a citizen’s
right: alongside health, education and the variety of other services developed
in 1945-50.

In Kerr v Department for Social Development (Northern Ireland) [2004] UKHL 23, [2004] 1 WLR 1372 (a case concerning a
claim for benefits for burial of a dead claimant) Lady Hale said of the welfare
benefits system:

'[62] What emerges from all this is a
co-operative process of investigation in which both the claimant and the
department play their part. The department is the one which knows what
questions it needs to ask and what information it needs to have in order to
determine whether the conditions of entitlement have been met. The claimant is
the one who generally speaking can and must supply that information. But where
the information is available to the department rather than the claimant, then
the department must take the necessary steps to enable it to be traced.'

There is no reason why the scheme for ECF grant should be
any different. Yet, on present drafting of the Guidance, the ECF scheme seems still not HRA-compliant.

By contrast, if the Lord Chancellor’s
case-workers can show that the LAA has complied with the list of assessment
factors set out above, in a positive way and in each individual case, he can
probably show he has complied with his duties under LASPO ss 1 and 10 and HRA
1998, s 6(1). If he cannot show this – and the Guidance is not compelling evidence of ‘diligence’ in securing
legal aid provision – then perhaps the Lord Chancellor’s operation of the legal
aid scheme is not Convention compliant.The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.